Against Abortion Rights: How Texas Overruled Roe v. Wade

Yusuf Perwez

On September 1st, 2021, the government of Texas passed a law effectively banning women from having an abortion after six weeks of pregnancy. The implementation of the law sparked much controversy throughout the country, and the future of abortion rights in America is currently being questioned.

Since the inception of Roe v. Wade, a Constitutional ruling that declares a pregnant woman’s right to choose to perform an abortion, many states have attempted to overturn or limit the law in its capacity of action. Examples include the post-fifteen-week abortion ban in Mississippi and the similar six-week ban in Iowa. However, both these laws were challenged and promptly shut down by state legislators, making the fact that the Texas law is still in practice especially surprising. It begs the question: what made this particular ruling different?

The Texas abortion law differs from other attempts to limit abortion in three ways. Firstly, the law was not accepted by the Supreme Court in the way a law usually is. It was issued through a “shadow docket.” In contrast to the regular passing of a law, “cases decided by way of the ‘shadow docket’ lack such public deliberation and transparency,” states the American Bar Association. In comparison to other cases, the Texan abortion law spent less time under the analysis and scrutiny of the Supreme Court. 

The latter two differences can both be discovered in nuances in the law’s effect. The second is within the actual people who are held liable as a result of breaking the law. The law states that anyone who, “performs or induces an abortion in violation of this subchapter,” or, “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” is liable to be charged.  Crucially, the law will not, “authorize the initiation of a cause of action against or the prosecution of a woman on whom an abortion is performed.” What this essentially means, is that everyone involved in violating the law can be punished except for the woman herself. By not taking action directly on the woman having the abortion, the law distances itself further from the ruling of Roe v Wade

The third difference concerns who is able to punish those who aid a woman in receiving an abortion. While outlining who may take action against violators of the law, the text states, “any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action.” Simply put, this means that no public official can carry out the enforcement of this law. Instead, everyone else is able to act on behalf of the law and punish those who break it. Those who decide to enforce the law can be awarded a minimum of $10,000 if they win, in addition to having their attorney’s fees covered. According to CBS News, Supreme Court Justice Sonia Sotomayor wrote that the incentive to punish violators of the law, “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” 

This system makes challenging the law more difficult since the government itself isn’t enforcing the law, meaning it is unclear who to initiate a case against when opposing it. With this in mind, what does the future of Roe v. Wade and abortion rights in America look like? 

The probability of Roe v. Wade being overturned is currently being debated amongst legal experts. According to The New York Times, Gillian Metzger, a professor of constitutional law at Columbia, said, “I think what’s more likely to happen, rather than have a full-on immediate reversal of Roe, is they take on some of these new regulations and see how much they can achieve without having that out-and-out reversal.” 

If Roe v. Wade is reversed, however, its effect on abortion rights throughout the country would be nothing short of a dilemma. The New York Times ran an analysis that examined the impact of a possible overturning of Roe v. Wade. The data showed that although in most states access to legal abortion would be unchanged, it would, “be likely to quickly become illegal in 22 states.” 

The Texas abortion law is one that violates a previously established precedent within the United States. From its unique enforcement to its possible implications on the long-standing ruling of Roe v. Wade, it is likely that it will change the way American citizens look at the history and future of abortion laws in the country.